s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances - extension refused.

• [1] On 27 June 2025 Ms. Kirsty Muggleton (Applicant) made an application for a remedy for unfair dismissal under Part 3-2 of the Fair Work Act (2009)(Cth)(Act) against her former employer, Falcon Manpower Solutions Pty Ltd (Respondent). According to the application, the Applicant's dismissal took effect on 1 April 2025. In that event the application has been made outside the 21-day time limit prescribed by s.394(2) of the Act. The Applicant seeks an extension of time pursuant to s.394(2)(b) of the Act. The Respondent contends that the Applicant was not dismissed, and in the alternative, opposes the granting of an extension. For the reasons set out below, I conclude that the Applicant was dismissed. I have also concluded that I am not satisfied that there are exceptional circumstances within the meaning of that term in s.394(3) and no extension can be granted.

• [2] In determining whether there are exceptional circumstances, the Fair Work Commission (Commission) must take into account the matters set out in s.394(3) of the Act. I deal with each of those matters in turn below.

s.384(3)(a) - Reason for the delay

• [3] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[1] I have concluded below that the Applicant was dismissed and that the dismissal took effect on 1 April 2025. The delay here is the period between 22 April 2025 and 27 June 2025. That is a period of 66 days.

• [4] The Applicant said that the delay in filing the application was attributable to her lack of knowledge of the processes for filing an unfair dismissal application. The Applicant also said that she was absent from work due to a workplace injury and when she advised that she was able to return to work, she was told that there was no work available even though she believed others were being employed and a co-worker was covering her shifts. The latter submission may have some relevance to the merits of the application, but it does not account for the delay. A lack of knowledge of the limitation period also does not adequately explain the delay. It is well established that a mere lack of knowledge of statutory time frames is commonplace and does not constitute an exceptional circumstance.[2] The reasons proffered for the delay do not weigh in favour of an overall conclusion that exceptional circumstances exist in this case.

s.384(3)(b) - Whether the applicant first became aware of the dismissal after it had taken effect

• [5] The Applicant said that she became aware of the dismissal on the day it took effect during a telephone conversation with the Respondent's operations manager on 1 April 2025. On the basis of the Applicant's evidence, I am satisfied that she was dismissed from her employment on the employer's initiative[3] during the telephone conversation on 1 April 2025. The Applicant therefore had the benefit of the full 21-day period to make an application. This does not support an overall conclusion that exceptional circumstances exist.

s.384(3)(c) - What action was taken by the applicant to dispute the dismissal?

• [6] Where an Applicant disputes a dismissal and an employer is on notice that the termination is contested, this may favour a conclusion of exceptional circumstance and the granting of an extension of time.[4] The Applicant said that she attempted to call the Respondent's operations manager again on the day of her dismissal after speaking with a person from another company about her termination, but that her calls were not returned. The Applicant said that she contacted 'Fair Work' on or about 25 June 2025 and then unsuccessfully attempted to contact the Respondent. However, the Applicant's attempted contact was in relation to the alleged failure to provide pay slips rather than a challenge to her dismissal. I conclude that the Respondent was not on notice that the dismissal was disputed until the application was received. I am of the view that there is nothing under this heading to support a conclusion that exceptional circumstances exist.

s.384(3)(d) - Prejudice to the employer, including prejudice caused by the delay

• [7] I do not find that there would be any material prejudice caused to the Respondent if an extension of time were granted. However, it is well-settled that a mere absence of prejudice is not, of itself, sufficient to establish exceptional circumstances. I regard this as a neutral consideration in the overall assessment.

s.384(3)(e) - Merits of the application

• [8] It is not necessary or desirable to make findings on all contested matters of fact for the purposes of an assessment of the merits of the matter at this preliminary stage. These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. In this case the Applicant contended that prior to her injury she worked on a regular basis for the Respondent and was not re-engaged once she was fit to return to work even though work was available. The Respondent submitted that the Applicant was a casual employee who had performed only a very limited number of casual shifts and that the Respondent lost the contract at the site at which the Applicant had previously worked. According to the Respondent, the loss of the contract meant that that no further work could be offered to the Applicant. I am unable to form a view on the available evidence as to whether the circumstances in which the dismissal occurred may have constituted an unfair dismissal. This would require further evidence and findings of fact to resolve competing contentions.

• [9] I do however note that the Applicant said that she commenced employment with the Respondent in May 2024 and was dismissed on 1 April 2025. The Respondent gave evidence to show that the Applicant commenced employment with the Respondent in October 2024 and worked only a very limited number of shifts as a casual employee before her workplace injury. It was also submitted by the Respondent that the Applicant worked for a business that was contracted to the Respondent, rather than the Respondent, prior to October 2024. Further, the Respondent gave unchallenged evidence to show that it was a small business employer at the time the Applicant's employment came to an end. Even accepting the Applicant's commencement date with the Respondent and assuming that the entire period of service as a casual counted as a period of employment for the purposes of s.384, the Applicant has not completed the minimum employment period[5] with the Respondent and in that case would not be a person protected from unfair dismissal.[6] This would be an insurmountable obstacle to the Applicant's claim for an unfair dismissal remedy. The merits of the application weigh against a conclusion of exceptional circumstances.

s.384(3)(f) - Fairness between the applicant and other persons in a similar position

• [10] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. Neither party submitted that it was a consideration that weighed for or against a conclusion of exceptional circumstances. This is a neutral factor here.

• [11] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [12] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[7]

• [13] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case.

By video using Microsoft Teams at 10:00am AEST on Wednesday, 6 August 2025.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1 of the Act.

[2] Miller v. Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23].

[3] Section 386(1)(a).

[4] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

[5] Section 383.

[6] Section 382.

Printed by authority of the Commonwealth Government Printer